Obama’s Blocked Immigration Program Is Perfectly Legal

Faithfully Executed

Obama’s new immigration program is perfectly legal and should not be blocked.

Blocked: A mother and child from El Salvador await transport to a processing center for undocumented immigrants after they cross the Rio Grande into the United States on July 24, 2014, in Mission, Texas.

Photo by John Moore/Getty Images

A federal judge in Texas, Andrew S. Hanen, has thrown the political world into turmoil by issuing a preliminary injunction against President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program, which protects some undocumented immigrants from deportation. Hanen’s 123-page opinion raises important questions about presidential power in our constitutional system, but it has little chance of surviving appeal.

More than 11 million undocumented immigrants reside in the United States. For many years the U.S. government winked at illegal immigration. No effort was made to deport undocumented immigrants unless they were convicted of serious crimes. While it is illegal for businesses to employ undocumented immigrants, U.S. immigration authorities have hardly ever raided employers or fined them. As a result, a permanent underclass works and contributes to the U.S. economy but does not enjoy the benefits of citizenship.

There have been many efforts to address this situation through legislation. Congress has repeatedly considered deals in which undocumented immigrants who have resided in the United States for many years, have avoided crime, have learned English, and have been educated and productively employed would be given a path to citizenship, while the rules for further immigration would be tightened going forward. But no such deal was ever reached.

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In 2012 the Department of Homeland Security created the Deferred Action for Childhood Arrivals, or DACA, program, which provided that DHS would not deport (that is what deferred action means) immigrants who were brought as children into the United States; have lived their lives here; were in school or had graduated, or served in the military; and had made their way through life without committing serious crimes. More than a million undocumented immigrants qualified for this program.

In 2014, DHS both expanded DACA and created DAPA. DAPA applies to undocumented immigrants who are parents of American citizens or lawful permanent residents, and meet certain other criteria, including continuous residence in the United States and a clean criminal record. DAPA could help as many as 4 million people.

Together, DACA and DAPA could “defer action” for as much as half the population of undocumented immigrants. But these programs do not turn them into “legal immigrants” or provide amnesty or immunity from deportation. The major effect of DACA and DAPA is a kind of statement: We are not planning to deport you. And the statement does not even bind DHS; the department could change its mind on a moment’s notice. A further wrinkle is that DHS claims (most likely correctly) to have the legal authority to give work permits to people whom it has decided not to deport. So this means that employers can hire immigrants with such work permits without violating the law.

The law is the law, and the law governing Judge Hanen’s own authority is clear.

Critics of DAPA argued that, by not enforcing immigration law, which says that undocumented immigrants should be deported, Obama violated the clause of the Constitution that says the president “shall take Care that the Laws be faithfully executed.” The Obama administration has argued that the president has the authority under the Constitution to allocate resources among enforcement priorities, especially in the area of immigration law, where historically, and as a result of the foreign policy implications of immigration, an unusual amount of power is given to the president to set priorities. Obama, like all his predecessors, has sought to use limited resources given him by Congress to deport violent and dangerous undocumented immigrants rather than hardworking and peaceful ones. DAPA (and DACA) is just an expression, a kind of formal acknowledgment, of this long-standing policy.

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Judge Hanen did not rule on the constitutional arguments, though his opinion is pregnant with constitutional rhetoric that suggests he sympathizes with the critics’ arguments. His ruling rests on an obscure but important statute called the Administrative Procedure Act. The APA governs the federal bureaucracy—it tells regulators how they are supposed to issue regulations. It was enacted in the wake of the New Deal amid concerns that Congress’s traditional policymaking role had been transferred to (or, to critics, usurped by) the executive branch, which was given vast powers to regulate the economy. The APA tries to subject this type of executive regulation to democratic controls. Generally, when the executive branch seeks to issue a new regulation, it must first give notice to the public and an opportunity for people to comment on it. Only after reading through the comments and providing a reasoned explanation for the regulation can the government give the regulation legal force.

DHS did not give notice and ask for comment before issuing DAPA. The reason it didn’t was that there is an exception in the APA for general statements of policy, as opposed to legislative rules. This exception reflects an unavoidable fact about legal enforcement: The “enforcers”—the regulators—must constantly make and change priorities. For example, when the U.S. government shifted law enforcement from drug crimes to terrorism after 9/11, this was a policy change, but no one believed that the government had to first go through the lengthy process of notice-and-comment rulemaking. Statements of policy simply alert people that enforcement priorities have changed. In this way the statement benefits people rather than imposing new restrictions on them; that’s why notice and comment are not required.

Case after case has established that a statement issued by a regulator is a mere policy when it leaves agents with discretion as to how to implement the statement. Otherwise, it establishes a legally binding rule, and notice and comment are required. If the DHS had said that everyone who satisfied the DAPA criteria must be given deferred-action status, then DAPA would be a rule, and so notice and comment would be required. But DHS told its employees that they should use their discretion when applying the DAPA criteria. The agents were given permission to refrain from granting deferred action to applicants who, for whatever reason, don’t seem to deserve it. DAPA was a policy statement, not a rule. For that reason, as Cass Sunstein explains, Judge Hanen erred.

Still, one can understand Hanen’s point of view. While DHS agents are formally given discretion, I have to agree with him that it is likely that agents will apply the eligibility criteria in a mechanical way. As he points out, that seems to be what is happening under DACA. All (or nearly all) of the applications for DACA benefits that have been rejected contained errors. They were not rejected because agents, using their discretion, decided to deny an application for reasons other than failure to satisfy the eligibility criteria. And one suspects that if 4 million or more people apply for DAPA benefits, agents will realize that they cannot weigh the merits of each application, and so instead will rubberstamp it.

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But the law is the law, and the law governing Judge Hanen’s own authority is clear. He cannot issue a preliminary injunction based on a prediction about how the government will act. He can only wait and allow the DHS to leap into action. If plaintiffs subsequently gather evidence that DHS agents actually do not use discretion but instead apply the DAPA criteria formulaically, only then can they seek an injunction. Hanen, in seeking to restrain the supposedly out-of-control executive branch, exceeded his own authority.

The deeper problem with Judge Hanen’s reasoning is that, as he explicitly acknowledges, the president really does have the constitutional authority to decide to go after violent felons and leave everyone else alone. That is what presidents have done for decades. While Hanen claims that DAPA “represents a massive change in immigration practice,” as he admits elsewhere, it is just a formalization of the status quo. He’s functionally telling the federal government, Go ahead and do it but don’t tell us you’re doing it. The effect of Hanen’s ruling is to prevent DHS from telling people whom it’s planning not to deport that it’s planning not to deport them. True, without this formal statement, these people will not be able to get legal jobs. But they will continue to work illegally.

Moreover, Judge Hanen’s ruling creates procedural hurdles that, in the context of this case, serve no purpose whatsoever. Notice of DAPA has been given to the public. Comments aplenty have streamed over the media. If DAPA went through notice and comment, it would emerge unchanged on the other side. The formal notice-and-comment procedure is just a recipe for delay.

The Obama administration could evade the force of the judge’s narrow legal ruling based on the APA. First, it could revise DAPA to give immigration agents more discretion. For example, the agents could be given the authority to deny deferred action to applicants with “bad moral character.” How exactly this would be an improvement over DAPA is hard to see. More likely, agents would act arbitrarily and litigation would result.

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I didn't read but the headline and the byline, but isn't Mr. Posner that professor who doesn't believe in free speech? More...

Second, President Obama could incorporate DAPA into an executive order. An executive order, unlike a DHS regulation (if that is what DAPA is), is not subject to the APA. Yet immigration agents would still be governed by the executive order, and would implement DAPA just as they would have under the DHS policy statement.

Judge Hanen has inflicted a lot of misery and disappointment on people without good reason. His injunction came just before people were set to apply for protection under DAPA, and the program is now on indefinite hold. Let’s hope the 5th Circuit Court of Appeals acts expeditiously to reverse his decision.